Days after the Supreme Court struck down Texas’ onerous and medically unnecessary regulations on abortion clinics, the state’s Department of Health and Human Services quietly proposed a new rule, forcing clinics to bury or cremate fetal remains from abortions and miscarriages. In December, U.S. District Judge Sam Sparks temporarily blocked the rule from taking effect while he considered a lawsuit alleging that it violated women’s constitutional rights. Sparks has been holding hearings on the issue, during which Texas health officials have struggled to justify their new regulation. One of the most fascinating revelations from these hearings was an admission by Jennifer Sims, deputy commissioner of the Texas Department of State Health Services, that her agency envisioned fetuses being buried in a mass grave.
In fairness, Sims was in a tough spot. Under Supreme Court precedent, an abortion regulation runs afoul of the Constitution when it poses an “undue burden” to women—that is, when the burdens created by a regulation outweigh the benefits it provides to women. Texas’ fetal remains rule provides no benefit at all to women. Thus, if it poses even a moderate burden, it cannot pass constitutional muster.
In challenging the Texas rule, the Center for Reproductive Rights asserted that the cost of an abortion will rise precipitously if clinics are required to bury or cremate fetuses. Indeed, the Funeral Consumers Alliance of Texas believes that the rule will add about $2,000 to the cost of an abortion. Texas has offered no assistance in implementing its rule, meaning clinics and patients are stuck with the fetal funeral bill. If clinics attempt to pay it, some will likely go out of business, significantly increasing the distance women must travel to terminate pregnancies. If women are told they must pay it, many may decide not to abort, since the cost is so outrageously high. That makes the Texas rule look a lot like an undue burden, placing a pointless yet substantial obstacle in the path of women who wish to exercise their constitutional right to abortion access.
The mass grave appears to be the Department of State Health Services’ attempt to work around this problem. In court, Sims alleged that bulk burial would bring the cost down to $2 per buried fetus. This discount would remove the burden created by the rule, rendering it constitutional.
But Sparks didn’t seem convinced. Whatever the agency envisioned in writing the rule, nobody seriously supports a mass fetal grave today, meaning fetuses must still be buried or cremated individually. Moreover, Sparks pointed out that the rule simply does not benefit women in any way. He said it was “obvious” the new rule has no health benefit and criticized it as purely “political.”
Sparks has extended his injunction to Friday, while he further considers the merits of the case, though given his courtroom comments, there’s little doubt that he will permanently block the rule. His hearings on the issue, however, remain quite valuable. For months, Texas has argued that the fetal remains rule was meant to “respect” the “sanctity of life.” Now it insists that aborted fetuses can be tossed into a mass grave on the cheap. It’s almost as if the only real purpose of the rule was to shame women who terminate their pregnancies and drive up the cost of abortion until the procedure becomes unobtainable for all but the wealthiest women.
